Spinnler v. Armstrong
| Decision Date | 12 October 1933 |
| Docket Number | No. 2882.,2882. |
| Parties | SPINNLER et al. v. ARMSTRONG. |
| Court | Texas Court of Appeals |
Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
Suit by Otto R. Armstrong against Gustave E. Spinnler and another. From an order overruling pleas of privilege interposed by the defendants, the defendants appeal.
Order reversed, and cause remanded, with instructions.
Kemp & Nagle, of El Paso, and Raymond E. Buck, of Fort Worth, for appellants.
Fryer & Cunningham, of El Paso, for appellee.
On July 5, 1932, appellee filed this suit in the district court of El Paso county against Gustave E. and Annie Laurie Spinnler, who were alleged to be residents of said county. In his petition plaintiff alleged that during the month of February, 1932, and just prior to and thereafter, at the special instance and request of defendants, he represented said defendants in a certain suit that at that time was pending in the Sixty-Fifth judicial district court of El Paso county, Tex., styled Annie Laurie Spinnler v. Gustave E. Spinnler, numbered 36,985 on the docket of said court; that he represented the said Annie Laurie Spinnler as attorney, at the special instance and request of said Annie Laurie Spinnler and Gustave E. Spinnler; and that under and by virtue of the laws of the state of Texas, and the express contract and agreement on the part of said defendant, Gustave E. Spinnler agreed to pay appellee a reasonable attorney's fee for services in said cause, both as to said suit and as to property division between said defendants. Appellee further alleged that he represented said defendants, as agreed to and contemplated by them, and performed his contract of employment, and that a reasonable attorney's fee for representing said defendants in said suit and property settlement, and all matters pertaining to the same, was the sum of $5,000.
On September 16, 1932, citation for Gustave E. Spinnler was issued to Hudspeth county returnable to the November term beginning November 7th. This citation was served October 26th.
On October 6th plaintiff filed affidavit setting up that the residence of the defendants was unknown, and upon the same day citation was issued for service by publication returnable to the November term. The last publication upon this citation was October 28th.
November 7th Gustave E. Spinnler filed plea of privilege in statutory form, claiming his right to be sued in Hudspeth county.
On the same date Hon. M. Nagle, as amicus curiæ, filed suggestion to the court that the citation by publication was null and void, and did not constitute any valid service upon Annie Laurie Spinnler.
November 12th plaintiff filed affidavit controverting Gustave E. Spinnler's plea.
November 29th plaintiff filed amended controverting affidavit to Gustave Spinnler's plea. In this amendment, as fixing the venue in El Paso county, plaintiff alleged that he, as an attorney at law, filed this suit against defendants for the reasonable value of legal services performed for them at the special instance and request of Annie Laurie Spinnler; that said services were performed in connection with suit for divorce by the said Annie Laurie Spinnler against Gustave E. Spinnler and for property settlement, and which said services were necessary to defendants; that Annie Laurie Spinnler was a resident of El Paso county, Tex., at the time of the filing of the suit, and that the residence of Gustave E. Spinnler was in El Paso county, Tex., at the time of the filing of said suit; and that if Gustave E. Spinnler had a residence in Hudspeth county, Tex., that each of such places constituted his residence. And, without waiving the foregoing allegations but insisting upon the same, appellee further alleged that, during the month of October, 1932, during the pendency of this suit he heard that the defendants were in the act of moving their residence to some other county or state; and that he was unable to ascertain the place to which defendants were intending to move and, therefore, issued citation by publication.
Hearing upon the plea was continued to the next term without prejudice.
December 21, 1932, Mrs. Spinnler was served by the sheriff of Bexar county, Tex., with an original citation issued December 13, 1932.
January 5th interlocutory judgment by default was rendered against Mrs. Spinnler.
January 20, 1933, Mrs. Spinnler filed plea of privilege, in statutory form, to be sued in Bexar county.
January 20th Mrs. Spinnler filed her answer, subject to the action of the court on her plea of privilege, and without waiving same.
February 6th Mrs. Spinnler filed a verified motion to set aside the interlocutory default judgment, and for hearing on her plea of privilege; such motion reciting that it was filed without waiving her plea of privilege, and alleging as grounds for setting aside said judgment, first, that she was not a resident of El Paso county, Tex., on the date of filing the petition, or at any date subsequent thereto, and that her plea of privilege had been filed in good faith, and that this court did not have venue over her person; then setting up grounds for excusing her delay in filing her plea of privilege; then alleging the facts to show a meritorious defense, and praying to have default judgment set aside, and for hearing on her plea of privilege.
February 15th appellee filed reply to the motion of Mrs. Spinnler.
February 15th appellee filed controverting affidavit to the motion of Mrs. Spinnler to set aside the default judgment.
February 17, 1933, the court entered judgment setting aside the interlocutory judgment of default rendered against Mrs. Spinnler. And on the 21st day of February the order setting aside the interlocutory judgment by default was amended so as to allow appellee three days in which to file his controverting affidavit to the plea of privilege of Mrs. Spinnler.
February 21st appellee filed his controverting affidavit to the plea of privilege of Mrs. Spinnler, alleging that this was a suit against defendants jointly for reasonable value of legal services performed for them at the request of Annie Laurie Spinnler in connection with suit for divorce by said Annie Laurie Spinnler against Gustave E. Spinnler and for property settlement; that said services were necessary to defendants; that plaintiff was suing both defendants under an implied contract in which they became liable to him for a reasonable attorney's fee of $5,000; that on July 5, 1932, and thereafter until August 15, 1932, Annie Laurie Spinnler was a resident of El Paso county, Tex., and had been for a long time prior thereto, and at the time of the filing of said suit she had not acquired any other residence or domicile to change her residence or domicile from El Paso county, Tex.; that when she left El Paso county, Tex., she proceeded to Aransas Pass, Tex., and there sojourned until August 15, 1932, when she went to San Antonio, Tex. Further alleging that interlocutory default judgment was rendered against Annie Laurie Spinnler on January 5, 1933; that her plea of privilege was not filed until January 20, 1933; that she filed her motion to set aside said judgment theretofore rendered, which motion was granted on February 17, 1933; and quoting from Annie Laurie Spinnler's motion to set aside the default judgment: "That as far as she was concerned that she would as leave have the cause of action tried in this Honorable Court as in any other forum and that her plea of venue was raised by Gustave E. Spinnler for his interest and benefit." Further alleging that her plea of privilege was filed too late, and that she had abandoned and waived the same.
On February 21st the defendants' pleas of privilege were overruled, from which they appeal.
Upon request of defendants the court filed findings and conclusions. The findings of fact are to the effect: (1) That Gustave E. Spinnler is now, and at all times since the date of the filing of the suit and for more than twelve months prior thereto was, a resident of Hudspeth county, Tex.; (2) that the residence of Annie Laurie Spinnler was, up until April, 1932, and for two years prior thereto, in El Paso county, Tex.; (3) that in April, 1932, she left El Paso with the intention of establishing her home and residence in San Antonio, Bexar county, Tex.; (4) that she did not establish such residence in San Antonio, or anywhere else, until August 15, 1932, when she did establish her home and residence in San Antonio; (5) that in the interim between the time she left El Paso and the time she established her home and residence at San Antonio, she sojourned at Aransas Pass; (6) that appellee did not know the actual residence of either defendant at the time of filing of the suit, but that he was of the opinion and supposed that the residence of Gustave E. Spinnler was in Hudspeth county, Tex., and that the residence of Annie Laurie Spinnler was in El Paso county, Tex.; and (7) that at the time of the filing of the plea of privilege on behalf of Annie Laurie Spinnler neither Annie Laurie Spinnler, nor her attorneys, had any actual notice of the default judgment.
As conclusions of law the court held: (1) That the legal residence, for the purposes of this suit, of Annie Laurie Spinnler was, at the time of the institution of the suit and now, in El Paso county, Tex.; (2) that inasmuch as plaintiff's allegations charge a joint liability of appellants to him, and the residence and venue of one of the appellants, Annie Laurie Spinnler, is El Paso, Tex., that the venue of the suit as to both appellants properly lies in El Paso county, Tex., and that the plea of privilege filed by Gustave E. Spinnler should be overruled; and (3) that the plea of privilege on behalf of Mrs. Annie Laurie Spinnler came too late to avail her of the benefits of same.
The court's findings and conclusions disclose that Gustave E. Spinnler's plea was...
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...to the rights of defendants, Fox v. Cone, 118 Tex. 212, 13 S.W.2d 65; and strictly, and must be clearly established, Spinnler v. Armstrong, Tex.Civ.App., 63 S.W.2d 1071; and are not to be denied upon strained constructions thereof. Southwestern Surgical Co. v. Scarborough, Tex. Civ.App., 15......
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